The Senate and Federalism – A Failure of Checks and Balances

By Steven Laib, on January 19th, 2014

When the Constitution was amended in 1913 to allow election of U.S. Senators by public vote it was a major change in the way in which the federal government operated. It also radically changed the power structure within the legislature, to the effect that one of the major checks on federal power was removed, paving the way for today’s crisis in which political parties have greater sway in government than state governments do. This move, supposedly in favor of greater democracy, was actually anti-democratic and eventually favored aristocracy.[1]

Under Article 3 of the Constitution senators were to be selected by state legislatures. This, according to critics led to problems when legislatures replaced incumbents leading to disputes over who was the duly qualified office holder. At the same time issues of corruption in senatorial appointments caused additional problems. Obviously, these issues were important, but could have been solved at the state level, and by legal process.

One major effect of this amendment was to create a tyranny of incumbency in the Senate, which has moved the body further away from democracy, as the people generally do not exercise their vote beyond rubber stamping incumbents, except in rare cases. At the same time, the interests of the state government have been subjugated beneath the interests of political parties, and the party in the majority can now be counted to do what will best aggrandize each Senator’s personal as well as federal power, rather than what best benefits the states and the people. This is what the provision requiring Senators to be appointed by the States prevented. But there is more to it.

In our high school or college class in “civics” or U.S. Government we are introduced to the idea of “checks and balances” that are built into the Constitution for the purpose of limiting government authority by creating a rivalry for power within the government in which balanced the ability of government abuse power with the power of the people and the states. But what is neglected in these classes is the balance within the Legislative Branch, which existed before 1913. At that time the Senate, serving at the will of the state governments served the will of the states, and represented what the state governments desired, which was, in many instances, the interests of state sovereignty and state’s rights.

The Senate, appointed by the state governments, thus, served as a check on federal power and on a House of Representatives representing a people all too willing to give up their rights. The state appointed Senators became an outpost of state power at the nation’s capitol, and could, in practice, prevent federal overreach by refusing to enact laws that would reduce state power, and taking political action against an executive who refused to respect state’s rights.

Instead, after 1913, the political party becomes paramount, as a chief executive seeks to have supporters from the same viewpoint in both houses of the legislature in order to become effectively an autocrat. When Franklin Roosevelt unveiled his Supreme Court packing plan, which led to the travesty of the Wickard v. Filburn decision, if he had been opposed by a Senate which refused to allow FDR’s choices into the court because the decisions they would render would negatively impact the states, history would have been significantly changed.

What follows, today, is that the excesses that have occurred during the last two decades would not have been possible. In a Senate that was not a dominated by what amounted to partisan hacks, the impeachment conviction of Bill Clinton would have been possible instead of impossible. The misnamed Affordable Care Act would never have passed, and a President seeking to act as a dictator or autocrat would find himself stifled by the state government representatives who would not accept the elimination of their power to the benefit of the national executive.

It is no wonder that the incredible growth in national government began in 1913, not resting entirely on the 17th Amendment, but on the creation of the income tax and Federal Reserve System as well. There should be no question, today, that this Amendment should be reversed, as part of a move to restore liberty to its former levels. America would benefit immensely from the return of power to the state governments where it was intended to rest and where it belongs.

[1] The amendment in question was number 17, proposed on 5/13/1912, and ratified on 4/8/1913.

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Steven Laib is the Assistant Editor of Intellectual Conservative. After growing up as a congenital conservative, to his eternal shame, in Berkeley, California and living most of his life in the San Francisco Bay Area, he obtained refugee status from the Republic of Texas and moved to the suburbs of Houston, where he became a legal consultant, largely working for the oil and gas industry. He is a member of the California State Bar, the United States Supreme Court Bar, and holds a MS in Taxation in addition to his JD.
He is one of Intellectual Conservative's most prolific writers, having published his first piece at about the time of the DC Beltway Sniper incident. He is married to the daughter of the late commanding officer of the national artillery school of the Republic of Vietnam Army, and has become an avid follower of Vietnamese music and Asian Wuxia movies. Occasionally he functions as Intellectual Conservative's correspondent on Southern and Eastern Asian affairs., Steven Laib, Steven Laib, Category: Constitution, Healthcare, public health, Political History